The Honorable Steven Limbaugh, United States District Judge

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for the Eastern District of Missouri.

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No. 95-4042

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Benny L. Wheeler, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

St. Louis Southwestern Railway *

Company; Southern Pacific *

Transportation Company, *

*

Appellees. *

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 Submitted: May 15, 1996

 Filed: July 26, 1996

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Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.

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WOLLMAN, Circuit Judge.

Benny Wheeler appeals the district court's order dismissing his

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claim for severance benefits against St. Louis Southwestern Railway Company

for lack of subject matter jurisdiction. We affirm.

I.

Benny Wheeler was employed by the St. Louis Southwestern Railway

Company (Railway) as a locomotive engineer and was a member of the

Brotherhood of Locomotive Engineers (BLE), a railroad union that represents

engineers. Pursuant to a national agreement with the United Transportation

Union (UTU), Wheeler also acquired seniority as a conductor, brakeman, and

switchman. The UTU is also
 Included in this category of employees are conductors,

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brakemen, and switchmen.

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a railroad union that represents employees in train and yard service. 

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In 1992, Railway developed a severance plan to reduce, on a voluntary

basis, employees working as conductors, brakemen, and switchmen. Wheeler

retired from active service on July 1, 1992, and applied for a $60,000 buyout under the severance plan. Railway denied Wheeler's application on the

basis that he was not an eligible employee under the plan.

Wheeler appealed the denial of his application to the plan

administrator. After the plan administrator denied his claim, Wheeler

filed suit in Missouri state court. Railway removed the case to federal

court, alleging that the claim was alternatively governed by the Railway

Labor Act, 45 U.S.C. §§ 151 et seq. (RLA) and the Employee Retirement

Income Security Act, 29 U.S.C. §§ 1140 et seq. (ERISA). The district court

denied Wheeler's motion to remand the case to state court. Railway then

moved for summary judgment on the ground that the case was preempted by the

RLA. The district court found that Wheeler's claim for severance benefits

was subject to arbitration under the RLA. Concluding that it lacked

subject matter jurisdiction over the dispute, the district court treated

Railway's motion for summary judgment as a motion to dismiss and dismissed

the action.

II.

From 1988 through 1991, Railway and the UTU were involved in

negotiations between the nation's railroads and the railroad unions

involving, inter alia, reduction in crew consist. Crew consist refers to

the number of employees necessary to safely operate a train. The parties

failed to reach agreement, and in order to
 The Award was named after the panel's chairperson, Helen

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Witt.

 Public Law 102-29 provided that the recommendations of the

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Board shall be binding on the parties and "shall have the same

effect as though arrived at by agreement of the parties under the

Railway Labor Act . . . ." Pub. L. No. 102-29, § 1(3).

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avoid a nationwide strike by the unions, President George Bush appointed

Presidential Emergency Board 219 (the Board) to investigate the disputes

and make recommendations. On January 15, 1991, the Board found that the

railroads had valid reasons for proposing a reduction in crew consist and

recommended that the individual parties negotiate at the local level. 

Despite the Board's recommendations, some of the railroads and unions

failed to reach agreement. In response to this failure, Congress enacted

Public Law 102-29, which imposed the recommendations submitted by the

Board. Settlement of Railroad Labor-Management Disputes, Pub. L. No. 102-

29, 105 Stat. 169 (1991). In accordance with this legislation, an

arbitration panel was appointed to resolve the crew consist dispute between

Railway and the UTU. On December 31, 1991, the panel issued its decision,

known as the "Witt Award." Pursuant to the Witt Award, train and yard

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service employees would receive a $60,000 buy-out if they voluntarily

retired from service by March 31, 1992. The Witt Award became a

congressionally-mandated collective bargaining agreement in response to

Public Law 102-29.4

III.

Dismissal for lack of subject matter jurisdiction will not be granted

lightly. Bowe v. Northwest Airlines, Inc., 974 F.2d 101, 103 (8th Cir.

1992), cert. denied, 507 U.S. 992 (1993). Dismissal is proper, however,

when a facial attack on a complaint's alleged basis for subject matter

jurisdiction shows there is no basis for jurisdiction. Id.
 The specific language contained in the Summary Plan

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Description states:

This program is intended to make available a choice

between voluntary separation and dismissal allowance

benefits to train and yard service employees in Company

service, in accordance with the Crew Consist Arbitration

Award dated December 31, 1991 issued pursuant to Public

Law No. 102-29.

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The issue is whether Wheeler's claim is preempted by the RLA. In

enacting the RLA, Congress attempted "`to promote stability in labormanagement relations by providing a comprehensive framework for resolving

labor disputes.'" Taggart v. Trans World Airlines, 40 F.3d 269, 272 (8th

Cir. 1994) (quoting Hawaiian Airlines, Inc. v. Norris, 114 S. Ct. 2239,

2243 (1994)). To accomplish this goal, the RLA imposes mandatory

arbitration for "minor" disputes. Id. Controversy over the meaning of an

existing collective bargaining agreement in a particular fact situation is

one example of a "minor" dispute. Taggart, 40 F.3d at 272 (citing

Brotherhood of R.R. Trainmen v. Chicago R. & I. R.R., 353 U.S. 30, 33

(1957)). In other words, the RLA preempts "state law claims that involve

minor disputes because such disputes are subject to mandatory arbitration."

Taggart, 40 F.3d at 272.

Wheeler argues that he is not seeking benefits pursuant to the

collectively-bargained Witt Award but rather under Railway's severance

plan. He claims that because the severance plan was not drafted pursuant

to the Witt Award, it is not a collective bargaining agreement subject to

the arbitration provisions of the RLA. He contends that the plan was

drafted solely by Railway and was thus not "bargained" for at all. He

further argues that the plan itself permits court adjudication of his

claim. 

We find Wheeler's contentions unpersuasive for several reasons.

First, the plan specifically refers to both Public Law 102-29 and the Witt

Award. Moreover, the plan simply mirrors the 5
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provisions set out in the Witt Award. For example, both the plan and the

Witt Award provide for a $60,000 buy-out for train and yard service

employees who apply for voluntary resignations before March 31, 1992. The

plan merely provides in greater detail the procedures employees must follow

to apply for severance benefits.

That Railway drafted the plan does not preclude the plan from being

a collective bargaining agreement. Collective bargaining agreements take

several forms under the RLA. In this case, it is clear that the plan arose

as a result of Congress' action in enacting Public Law 102-29 and the

subsequent Witt Award. Wheeler's claim for severance benefits is precisely

the type of dispute the RLA's arbitration provisions were intended to

cover.

We find unpersuasive Wheeler's argument that the Supreme Court's

recent decision in Norris lends support to his position that the claim is

not preempted by the RLA. In Norris, the Supreme Court held that the RLA

does not preempt state law rights that are independent of the collective

bargaining agreement. Norris, 114 S. Ct. at 2248-49. In Wheeler's case,

however, any severance benefits to which he may be entitled arise solely

from the provisions of the plan. Thus, Norris is inapposite. See id. at

2248 ("[W]here the resolution of a state-law claim depends on an

interpretation of the collective-bargaining agreement, the claim is

preempted."); see also Taggart, 40 F.3d at 273.

Finally, Wheeler argues that the plan itself provides that a claim

for denial of benefits may be brought in state or federal court. This

language, however, appears in the section of the plan entitled "ERISA

Requirements." It is well-recognized that ERISA does not provide an

alternative to the RLA. Bowe, 974 F.2d at 103. "Despite [ERISA's] express

provision allowing suits over the coverage and application of [employee

benefit] plans to be brought in federal court, ERISA was not intended to,

nor did it, preempt the mandatory arbitration provisions of Railway Labor

Act." Id.
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(internal quotations omitted) (alteration in original).

The order of dismissal is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.